Citation Nr: 1019733 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 05-16 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for muscle and joint pain in the left wrist and bilateral elbows and shoulders, including as due to an undiagnosed illness. 2. Entitlement to an evaluation in excess of 10 percent for productive changes, left hip. 3. Entitlement to an evaluation in excess of 60 percent for degenerative disc disease (DDD) and strain, cervical spine, with bilateral upper extremity neurological symptoms and headaches. 4. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease (DDD) and strain of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from July 1987 to May 1996, including in the Southwest Asia Theater of operations from August 1990 to March 1991 during the Persian Gulf War These claims come before the Board of Veterans' Appeals (Board) on appeal of a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which in part, denied the issues on appeal. The Veteran testified in support of these claims during a hearing held before a Decision Review Officer at the RO in October 2004. In June 2007 and August 2009, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. VA provided the Veteran adequate notice and assistance with regard to the claims being decided. 2. The Veteran served on active duty in the Persian Gulf in support of Operation Desert Storm. 3. The Veteran does not have an undiagnosed disability manifested by muscle and joint pain in the left wrist, bilateral elbows, and shoulders which is related to service. 4. The Veteran's muscle and joint pain in the left wrist, bilateral elbows, and shoulders are separate and independent entities; the diagnoses are mild bilateral shoulder impingement with normal x-rays; tendinitis of the elbows, bilateral; and, left wrist tendinitis which are not related to service. 5. The Veteran's left hip range of motion is flexion to 45 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 20 degrees, internal rotation to 10 degrees, and external rotation to 20 degrees. 6. DDD and strain, cervical spine is not manifested by unfavorable ankylosis of the entire cervical spine. 7. DDD and strain of the thoracolumbar spine is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Muscle and joint pain in the left wrist and bilateral elbows and shoulders, including as due to an undiagnosed illness, were not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2009). 2. The criteria for entitlement to an evaluation in excess of 10 percent for productive changes, left hip, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5250-5255 (2009). 3. The criteria for an evaluation in excess of 60 percent for DDD and strain, cervical spine, with bilateral upper extremity neurological symptoms and headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2009). 4. The criteria for an evaluation in excess of 40 percent for DDD and strain of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA provided the Veteran adequate notice and assistance with regard to the claims being decided such that the Board's decision to proceed in adjudicating them does not prejudice the Veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). A. Duty to Notify Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). Where notice was not mandated at the time of the initial RO decision, it is not error to provide remedial notice after such decision. Id. at 122-24. In March 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Such notice must explain how it determines the appropriate disability rating and effective date to assign the award. Id. at 486. In January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. In this case, the RO provided the Veteran VCAA notice on his claims by letters dated February 2003, June 2006, June 2007, September 2007 and May 2008, the first before initially deciding those claims in a rating decision dated May 2004. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of such notice letters, considered in conjunction with the content of other letters the RO sent the Veteran in July 2003 and April 2005, also reflects compliance with pertinent regulatory provisions and case law, noted above. In the letters, the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, informed him of VA's duty to assist, and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all required information on disability ratings and effective dates. As well, the RO identified the evidence it had requested and received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The RO advised the Veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to secure such records on his behalf. The RO also advised the Veteran to provide VA all pertinent evidence and information. B. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO endeavored to secure and associate with the claims file all evidence the Veteran identified as being pertinent to these claims, including service and post-service treatment records The RO also conducted medical inquiry in support of the Veteran's claims by affording the Veteran VA examinations, during which examiners addressed the etiology and severity of the disabilities at issue in this decision. Since then, the Veteran has not asserted that the reports of these examinations are inadequate to decide his claims. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). I. Service Connection The Veteran seeks service connection for muscle and joint pain in the left wrist and bilateral elbows and shoulders, including as due to an undiagnosed illness. According to written statements he submitted during the course of this appeal and his hearing testimony, presented in October 2004, he most likely developed these symptoms while serving in the Persian Gulf in support of Operation Desert Storm or secondary to the PB pills and anthrax shots needed prior to transferring there. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). With regard to claims for service connection under 38 U.S.C.A. § 1117 based on service in the Persian Gulf, the law provides the following: (a)(1) The Secretary may pay compensation under this subchapter to a Persian Gulf Veteran with a qualifying chronic disability that became manifest (A) during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or (B) to a degree of 10 percent or more during the presumptive period prescribed under subsection (b). (a)(2) For purposes of this subsection, the term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service connection. (b) The Secretary shall prescribe by regulation the period of time following service in the Southwest Asia theater of operations during the Persian Gulf War that the Secretary determines is appropriate for presumption of service connection for purposes of this section. * * (f) For purposes of this section, the term "Persian Gulf Veteran" means a Veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117 (West 2002). The regulation implementing the foregoing statute provides, in relevant part, that except as provided otherwise, VA shall pay compensation in accordance with chapter 11 of Title 38, United States Code, to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability (i) became manifest either during active duty in the South West Asia theater of operations during the Gulf War, or to a compensable degree no later than December 31, 2006, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). "Objective indications of chronic disability" include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for at least six months and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered "chronic." 38 C.F.R. § 3.317(a)(4). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Muscle and joint pain in the left wrist, bilateral elbows, and shoulders Post-service medical records, including VA and private treatment records dated since September 2000 and reports of VA examinations conducted in November 2003 and June 2008 confirm that the Veteran currently has left wrist, bilateral elbows, and shoulders symptoms diagnosed as tendinitis. The question is thus whether this left wrist, bilateral elbows, and shoulders disabilities are related to the Veteran's active service, including in the Persian Gulf. As previously indicated, the Veteran in this case served on active duty from July 1987 to May 1996. According to his service medical records, during this time period, he did not report chronic left wrist, bilateral elbows, and shoulders complaints. Following discharge, beginning in September 2000, the Veteran expressed left wrist, bilateral elbows, and shoulders complaints among others. A VA examiner who conducted a November 2003 neurological examination concluded that there was no evidence of radiculopathy secondary to the Veteran's cervical spine disability, which might account for the Veteran's complaints. No medical professional linked the left wrist, bilateral elbows, and shoulders to the Veteran's period of active service. In a June 2008 VA examination it was noted that the Veteran was trying to establish service connection for joints and muscle pain in the left wrist, elbows and shoulders. The examiner noted no evidence of any bilateral shoulder, elbows, or left wrist traumatic event. Examination revealed no gross defects or atrophy of either shoulder, elbow, or left wrist. Range of motion of the shoulders was 180 degrees of forward flexion and abduction bilaterally; external and internal rotation was to 90 degrees, with pain at 90 degrees. Range of motion of the elbows was forearm flexion to 145 degrees, supination to 80 degrees; forearm pronation to 80 degrees. Repeat testing did not cause increased pain, weakness, fatigue, or additional functional limitations. Left wrist ROM revealed palmar flexion to 55 degrees; radial deviation was to 15 degrees; ulnar deviation to 45 degrees. Repeat testing did not cause increased pain, weakness, fatigue, or additional functional limitations of the shoulders, elbows, or left wrist. The examiner opined that he did not believe the shoulder, elbow and left wrist pain was part of a constellation of a disease such as fibromyalgia or an undiagnosed illness related to the Veteran's Persian Gulf War Service. Further they were less likely than not related to his previous service in the military. The symptoms could easily have occurred on post-military service. A review of the C-file, revealed the veteran was seen in 1993 for a shoulder pectoral muscle strain in which he had a full active range of motion in the shoulder and was given Motrin. It today's current situation, again, he has full active range of motion in both shoulders, although very mild symptoms of impingement. Regarding the elbows, the examiner opined that, it is most likely due to left lateral epicondylitis. He opined that the elbow pain tendinitis of both elbows. Regarding the wrists, he opined that it was also due to a history of tendinitis. What the Veteran described pain starting in the left wrist on the flexor aspect that radiates into the thumb on the palmar surface, other than mild bilateral symmetric limitation of motion in the wrists, the examination was essentially normal. The examiner opined that, "It is my opinion that his shoulder, wrist, and elbow diagnosis are separate and independent entities that are most likely related to overuse. These symptoms are primarily pain related with minimal loss of range of motion and with essentially normal radiographical studies, therefore it is my opinion that the patient's bilateral shoulders, elbows, and wrists are less likely than not (less than 50/50) related to the Veteran's period of active service while in the Persian Gulf War" Clearly the Veteran's left wrist, elbows and shoulders symptoms have been attributed to known diagnosed illnesses, thereby precluding the veteran from an award of service connection for such symptoms based on his service in the Persian Gulf. In addition, as previously indicated, to prevail in a claim for service connection, a claimant must submit competent evidence establishing the existence of a current disability resulting from service or a service- connected disability. In this case, the Veteran's assertions are the only evidence of record linking his left wrist, elbows and shoulders disabilities to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Veteran, as a lay person, is not competent to testify that his current left wrist, elbows and shoulders disabilities were caused by active service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the Veteran's statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. Inasmuch as tendinitis of the left wrist, elbows and shoulders are not related to the Veteran's active service, the Board concludes that such disabilities were not incurred in or aggravated by service. The evidence is not in relative equipoise; therefore, the Veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, the claim must be denied. II. Increased Evaluations The Veteran seeks increased evaluations for left hip, cervical and thoracic spine disabilities. He asserts that the evaluations assigned these disabilities do not accurately reflect the severity of all associated symptomatology. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45). Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. DC 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for x-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003 (2009). IIa. Left hip disorder The Veteran claims that an increased evaluation is warranted for his left hip disability because it involves clicking, uncomfortable grinding and sciatic pain daily. Written statements of his friends and sister confirm the hip pain, which allegedly interferes with the Veteran's ability to sleep, necessitates the use of medications, hinders his ability to exercise properly, and causes significant physical and mental limitations. The RO has evaluated the Veteran's left hip disability as 10 percent disabling pursuant to DCs 5010 and 5255. DC 5010 provides that arthritis due to trauma, substantiated by x- rays, is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. The appropriate DCs for the specific joint involved in this case are 5251, 5252 and 5253. Under DC 5251 a 10 percent evaluation is assignable for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251 (2009). DC 5252 provides a 10 percent evaluation for flexion of the thigh limited to 45 degrees. A 20 percent evaluation is assignable for flexion of the thigh limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5252 (2009). DC 5253 provides a 10 percent evaluation for limitation of rotation of the thigh; cannot toe-out more than 15 degrees of affected leg, or limitation of adduction of the thigh, cannot cross legs. A 20 percent evaluation is assignable for limitation of abduction of the thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253 (2009). DCs 5254 and 5255 are also applicable to this appeal. DC 5254 provides that an 80 percent evaluation is assignable for a flail joint of the hip. DC 5255, which governs impairment of the femur, provides that a 10 percent evaluation is assignable for malunion of the femur with slight knee or hip disability. A 20 percent evaluation is assignable for malunion of the femur with moderate knee or hip disability. A 30 percent evaluation is assignable for malunion of the femur with marked knee or hip disability. Extension and flexion of the hip are considered normal if ranging from 0 to 125 degrees. Abduction of the hip is considered normal if ranging from 0 to 45 degrees. 38 C.F.R. § 4.71. Based on these criteria, as well as the reasoning noted below, the evidence establishes that the Veteran's left hip disability picture does not more nearly approximate the criteria for an increased evaluation under any pertinent DC during any time period at issue in this appeal. During a VA joints examination conducted in March 2003, the Veteran reported hip pain that interfered with his ability to play certain sports. No examination of the left hip was performed. X -rays revealed a congenital bilateral abnormality of the hips but they were normal in all other aspects. During a November 2003 VA Gulf War Guidelines examination, the examiner noted hip pain, worse on the right and with prolonged standing, which was consistent with a shorter left hemipelvis and left leg (congenital abnormality). Range of motion of the hips was forward flexion to 125 degrees, bilaterally; abduction to 60 degrees, bilaterally; internal rotation to 45 degrees, bilaterally; and, external rotation to 60 degrees, bilaterally. The examiner also noted that this anatomical abnormality was causing spasms at night. During an October 2008 VA examination, the examiner noted that the Veteran walked with a slow gait using a cane; and he had difficulty squatting. Range of motion of the left hip was forward flexion to 45 degrees; abduction to 20 degrees; hip adduction to 20 degrees; extension to 10 degrees; internal rotation to 10 degrees; and, external rotation to 20 degrees. Motion testing elicited discomfort on the left. The examiner noted no atrophy, weakness, incoordination, fatigability, nerve involvement or ankylosis. X-rays revealed bilateral femoral head osteophytes, but normal joint space. In June 2009, new evidence was received from William L. Wilson, M.D., M.SC. This included pain management treatment records from June 2005 to March 2009. This evidence did not offer any evidence indicating any greater disability picture regarding the left hip disorder. As the above evidence shows, during the course of this appeal, the Veteran's left hip disability involved a defect of the femoral head, a shorter left pelvis and leg and degenerative joint disease, but not a flail hip joint or malunion of the left femur. As previously indicated, this disability gradually worsened since 2005, causing pain and discomfort, including on motion, limitation of motion and spasm at night, but not limitation of abduction beyond 10 degrees, flexion limited to 30 degrees, or ankylosis. In the absence of more severe limitation of motion, ankylosis, a flail hip joint or malunion of the femur, an evaluation in excess of 10 percent may not be assigned the left hip disability under any applicable DC during any time period at issue in this case. IIb. DDD and strain, cervical spine and thoracolumbar spine Degenerative changes of the lumbar and cervical spine are rated under the general rating for diseases and injuries of the spine. Under that formula, the ratings are assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under this formula, a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 2, General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a, Plate V (2009). Under current provisions for rating intervertebral disc syndrome, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Section 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). For evaluation of intervertebral disc syndrome, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. Historically by rating decision in November 1996 service connection was granted for cervical strain and lumbar strain. Each was assigned a 10 percent rating from May 13, 1996. In an October 2000 statement of the case a decision review officer (DRO) increased the 10 percent rating for a cervical strain to 30 percent and increased the 10 percent rating for a lumbar strain to 40 percent each from March 31, 2000. Subsequently the DRO in a February 2001 revised the decision to increase the 10 percent rating for a cervical strain to 60 percent; and increased the 10 percent rating for a lumbar strain to 40 percent, each from January 1, 2000. By rating action in May 2004 service connection was granted for a thoracolumbar spine disorder. This was combined with the lumbar spine disorder and recharacterized as DDD and strain of the thoracolumbar spine and the 40 percent rating was continued. During the VA examination conducted in October 2008, the Veteran reported injuring his back in a weight lifting injury in service in the early 90s and has had neck pain since. He reported constant sharp pain rated 8/10, and treated with chiropractor adjustments. The examiner noted that the claims file did not reveal any indication or treatment of a neck injury in service, although noting a moderately severe back injury and treatment in service. The Veteran reported pain radiating to the right shoulder with occasional tingling of the right little finger; and, left upper extremity to the left hand. He reported occasional flare-ups of pain; he had not reported missing work or being incapacitated; and, he reported some degree of kidney malfunction. He was not taking any nonsteroidal antiinflammatory drugs. He has had a series of epidurals and has had to discontinue all sports activities. The examiner noted a well developed muscular male who walked with a cane due to hip pain and arthritis. He walked slowly with normal head position and cervical lordotic curve. Range of cervical motion was flexion to 20 degrees, extension to 30 degrees, left rotation to 40 degrees, right rotation to 50 degrees, and right and left lateral bending to 15 degrees. He grimaced and had some discomfort and stiffness with motion. He had normal coordination and endurance with no indication of weakness; or fatigue on repetition. A neurological examination revealed normal upper extremity strength, 2+ reflexes at triceps, biceps, and brachioradialis. Pin sensation was somewhat reduced in the fingertips, and nondermatomal distribution sensation in the forearm or upper arm. X-rays of the cervical spine were normal. The diagnosis was significant pain limiting mobility of the cervical spine and ability to turn head. There was no indication of fatiguability or weakness, although pain level may increase with activity level. There were no neurological or radicular signs or symptoms. The Veteran had numbness noted in his hands but no sign of weakness; cervical ankylosis; or significant indications of headaches causing additional disability. There was no paralysis. The cervical spine disability was primarily on the basis of pain with no indication of strength, speed, or endurance deficits. Flare- ups also on the basis of pain with no indications of incoordination. In June 2009, new evidence was received from William L. Wilson, M.D., M.SC. This included pain management treatment records from June 2005 to 2009. A June 2005 evaluation noted range of cervical motion was flexion to 90 percent, extension to 30 percent, left rotation to 30 percent, right rotation to 80 percent, and right and left lateral bending to 100 percent. A March 2009 evaluation noted range of cervical motion was flexion, extension, left and right rotation, and right and left lateral bending all to 100 percent without pain (after adjustment). Range of thoracic motion while not given was noted to not cause pain with motion. Significantly, no medical evidence of record reveals evidence of unfavorable ankylosis of the thoracolumbar or cervical spines at any time during this rating period. Hence, entitlement to a higher 50 percent rating for the thoracolumbar spine disorder; or; 100 percent rating for the cervical spine disorder is not warranted at any time. Indeed, the evidence of record including that evidence submitted in June 2009 by the Veteran does not support his claim for increased ratings, even considering DeLuca factors. The Board notes that VA examiners found no identifiable abnormal musculoskeletal pathology of the cervical spine, and no evidence of neuropathy, cervical radiculopathy or myopathy. Subjective pain was noted to appear to be the greatest functional impact. The Veteran clearly does not have ankylosis of the cervical spine. Therefore, a higher evaluation for a cervical spine disorder is not in order for the entire rating period. Regarding the lumbar spine disorder, the Veteran has not been shown to have had any evidence of neuropathy, brachial or lumbosacral plexopathy, or lumbar radiculopathy or myopathy. He has not exhibited favorable ankylosis of the entire thoracolumbar spine. Therefore, a higher evaluation for the thoracolumbar spine disorder is not in order for the entire rating period. In fact, the finding appears at odds with or at least disproportionate to the Veteran's allegations and increased ratings are not warranted. Without further discussing the propriety of the RO's decisions, the Board finds that the manifestations of the Veteran's cervical and thoracolumbar disabilities do not meet or more nearly approximate the criteria for increased ratings under any of the applicable diagnostic codes. Accordingly, entitlement to a higher 50 percent rating for the thoracolumbar spine disorder; or; 100 percent rating for the cervical spine disorder is denied. ORDER Service connection for muscle and joint pain in the left wrist and bilateral elbows and shoulders, including as due to an undiagnosed illness is denied. Entitlement to an evaluation in excess of 10 percent for productive changes, left hip is denied. Entitlement to an evaluation in excess of 60 percent for degenerative disc disease and strain, cervical spine, with bilateral upper extremity neurological symptoms and headaches is denied. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease and strain of the thoracolumbar spine is denied. ____________________________________________ V.L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs